January-February 2019

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28 PalletCentral • January-February 2019 n December 2018, it was revealed via a Freedom of Information Act (FOIA) request that on May 18, 2018, the Occupational Safety & Health Administration (OSHA) issued an internal memorandum to its regional administrators directing the procedures for the use of "Unmanned Aircraft Systems" (UAS) – commonly referred to as "drones" – during its safety and health inspections. The stealth memorandum has now been in effect but very little is known about its practical impact on enforcement activities and results, although they have reportedly been used so far on nearly a dozen worksite inspections. In order to protect yourself from unauthorized searches in violation of the Fourth Amendment to the U.S. Constitution, it is important to know the do's and don'ts for OSHA when attempting to conduct surveillance of your worksite. First of all, it is critical to remember that OSHA does NOT have warrantless search authority. As a practical matter, it may not be wise to demand a warrant whenever OSHA shows up, because it will antagonize them, and also reduce the amount of discount you can receive on citation penalties. But there are certain situations where requiring them to obtain a warrant is justified, such as in a fatality case where you need to get your response team on site (safety officer, counsel, technical experts or manufacturers). OSHA does not need to go to any court to get a warrant – this isn't Law and Order – and they have administrative warrants already issued in bulk back at their office. But the warrant request will slow down the train by anywhere from a half-day to a full-day. You need to decide if the risks and benefits are worth it. Normally, even without a warrant, you can limit the scope of an OSHA inspection depending upon the type: a hazard complaint- based inspection typically only allows OSHA to look at the equipment or area at issue. However, even during a limited scope inspection, if OSHA observes a violation "in plain view," that justifies them expanding the scope of the inspection. So if a drone is used, this makes a larger portion of your worksite available to them. If the inspectors observe something through a fence or from outside your property that is a problem, this can justify opening an inspection event, particularly if the condition presents an "imminent danger." Imminent danger inspections are OSHA's top priority, even surpassing fatality or injury case responses. Normally these plain view inspections have been triggered by OSHA driving by a facility or worksite (often in construction) and seeing workers through a I Look, Up in the Sky. It's a Bird, It's a Plane … It's OSHA! By Adele L. Abrams, Esq., CMSP SAFETY

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